Zaleski v. Zaleski

• Decision Date: 01 August 2014
• Docket Number: SJC–11391.
• Citation: 13 N.E.3d 967,469 Mass. 230
• Parties: Carolyn ZALESKI v. Stephen ZALESKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 230

13 N.E.3d 967

Carolyn ZALESKI

v.Stephen ZALESKI.

SJC–11391.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 3, 2013.

Decided Aug. 1, 2014.

Paul P. Perocchi (Cynthia Grover Hastings with him), North Andover, for the wife.

David E. Cherny (Catharine V. Blake with him), Boston, for the husband.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

DUFFLY, J.

The Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform act or act), changed the legal framework under which courts may award alimony when a marriage ends in divorce. The act created four categories of alimony: “[g]eneral term alimony,” “[r]ehabilitative alimony,” “[r]eimbursement alimony,” and “[t]ransitional alimony,” and placed durational limits on the length of time alimony may be paid absent specific extenuating circumstances as found by a judge before the statutory period expires. See G.L. c. 208, §§ 48 –52. We are asked to decide in this case of first impression whether a Probate and Family Court judge abused her discretion in determining that rehabilitative alimony, with its presumptive five-year payment period, was the appropriate form of alimony to be ordered, rather than general term alimony, which, based on the length of the parties' marriage, would have permitted alimony payments to continue for thirteen years.

In December, 2010, Carolyn Zaleski (wife) filed a complaint for divorce from Stephen Zaleski (husband) on the ground of an irretrievable breakdown of the marriage. Following trial, judgment entered granting a divorce nisi on the basis of irretrievable breakdown of the marriage, see G.L. c. 208, § 1B, awarding rehabilitative alimony to the wife, dividing the marital assets, and incorporating a stipulation of the parties regarding the custody and education of their two children. The wife appealed, and we transferred the case to this court on our own motion.

The wife challenges that portion of the judgment ordering the husband to pay rehabilitative alimony rather than general term alimony. She also challenges the judge's exclusion of the husband's bonus income from the calculation of the amount of the alimony award; the requirement that she maintain policies of term and whole life insurance as security for her obligations under the divorce judgment; and the division of marital assets, including the allocation of marital debt. We conclude that it was not an abuse of discretion to award rehabilitative alimony, and that the allocation of debt and division of property between the parties was warranted by the evidence. Nonetheless, we remand for further proceedings based on our determination that it was error not to

include all of the husband's income in the calculation of the amount of alimony, and that there was no basis in the judge's findings to require the wife to maintain life insurance policies as security.

Background. We draw our summary of the facts from the judge's written findings of fact. The parties were married on October 15, 1994, in Massachusetts. At the time of trial, the wife was forty-five years old and the husband was forty-eight years old.² They have two children, both of whom attend private schools; at the time of trial, their daughter was a sophomore in high school and their son was in the eighth grade. The parties are in agreement that their son should also attend a private high school. In June, 2011, the parties agreed to a temporary parenting arrangement under which the children resided in the marital home continuously and the parties moved in and out of the marital residence to accommodate each party's scheduled time with the children.³ The complaint for divorce was served on the husband in February, 2011.⁴

The judgment of divorce ordered the husband to pay the wife rehabilitative alimony in the amount of $11,667 per month for five years; this amount is thirty-five per cent of the husband's annual base salary of $400,000.⁵ A stipulation of the parties that provided for shared legal and physical custody of the children was incorporated in the judgment; the judge ordered that neither

was to pay child support “at this time.” The judgment further provided that the husband shall be solely responsible for the children's private school tuition and expenses, and that the parties shall share equally the cost of the children's extracurricular and enrichment activities and their uninsured medical and dental costs.⁶ In addition, the judgment required both parties to maintain life insurance coverage as it existed at the time of trial as security for their obligations; allocated responsibility for certain joint indebtedness; ordered that each party will have responsibility for liabilities standing in his or her own name; and provided for a division of assets, including a payment from the husband to the wife in the amount of $27,466, “[i]n order to equalize the division.”⁷

Discussion. 1. Statutory framework. Because there was no alimony jurisdiction at common law, “the power to grant alimony was wholly statutory.” Gottsegen v. Gottsegen, 397 Mass. 617, 621–624, 492 N.E.2d 1133 (1986).⁸ The courts' authority to grant alimony has been set forth in G.L. c. 208, § 34. As noted, the alimony reform act of 2011 added new provisions to c. 208, creating four categories of alimony; only rehabilitative and general term alimony are at issue here.⁹ Both require that a judge consider the factors set forth in G.L. c. 208, § 53, in deciding the appropriate form of alimony:

“the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.”

G.L. c. 208, § 53 (a ). These factors also are to be considered in determining the amount of alimony to be awarded. Id. In sum, the primary differences between rehabilitative and general alimony relate to the initial term limits set forth in the act and the standard by which the term of alimony may be extended.

Rehabilitative alimony is defined as “the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse under a judgment.” G.L. c. 208, § 48. The alimony reform act provides, among other things, that “[r]ehabilitative alimony shall terminate upon ... the occurrence of a specific event in the future,” G.L. c. 208, § 50 (a ),¹⁰ but also that the alimony term shall not exceed five years. G.L. c. 208, § 50 (b ). Extension of the term is authorized, however, on a showing of compelling circumstances that “unforeseen

events prevent the recipient spouse from being self-supporting at the end of the term with due consideration to the length of the marriage, [and] the court finds that the recipient tried to become self-supporting.” G.L. c. 208, § 50 (b ).¹¹ The amount of alimony may be modified during the term “upon material change of circumstance.” G.L. c. 208, § 50 (c ). By contrast, general term alimony is defined as “the periodic payment of support to a recipient spouse who is economically dependent.” G.L. c. 208, § 48. Payments continue, subject to durational time limits established by the act that depend upon the length of the marriage; here, general alimony would have entitled the wife to support payments of up to approximately thirteen years.¹² See G.L. c. 208, § 49. General term alimony can be extended for “good cause” if there has been a material change in circumstances and the reasons are supported by “clear and convincing evidence.” G.L. c. 208, § 49 (f ) (2).

We turn to a consideration whether the judge's findings in this case reflect that she considered the mandatory factors when determining the appropriate form of alimony, and whether those findings support her conclusion that the wife should receive rehabilitative alimony. We then consider whether the findings support the judge's determination regarding the amount of the alimony award.

2. Standard of review. A judge has broad discretion when awarding alimony under the statute. Heins v. Ledis, 422 Mass. 477, 480–481, 664 N.E.2d 10 (1996).¹³ In reviewing both the form and the

amount of an award of alimony, we examine a judge's findings to determine whether the judge considered all of the relevant factors under G.L. c. 208, § 53 (a ), and whether the judge relied on any irrelevant factors. Cf. Baccanti v. Morton, 434 Mass. 787, 790, 752 N.E.2d 718 (2001) (reviewing factors under G.L. c. 208, § 34, regarding division of marital property). “[I]t is important that the record indicate clearly that the judge considered all the mandatory statutory factors,” Rice v. Rice, 372 Mass. 398, 401, 361 N.E.2d 1305 (1977), and that the reason for her conclusion is apparent in her findings. Heins v. Ledis, supra at 481, 664 N.E.2d 10. “A judgment will not be disturbed on appeal unless ‘plainly wrong and excessive.”’ Id., quoting Pare v. Pare, 409 Mass. 292, 296, 565 N.E.2d 1195 (1991).

3. Rehabilitative alimony. a. Mandatory factors. A judge has discretion in deciding whether to award rehabilitative alimony rather than general term alimony, so long as she has given appropriate consideration to the factors identified in G.L. c. 208, § 53 (a ).¹⁴ Where the determination is made that rehabilitative alimony, with its shorter durational limits, is the most appropriate form, findings based on those factors must support the conclusion that a recipient spouse's economic dependence is temporary, and that, at a predictable date, the dependent spouse can become self-sufficient by undertaking reasonable efforts. See G.L. c. 208,...